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PRINTED FROM the OXFORD RESEARCH ENCYCLOPEDIA, AMERICAN HISTORY (oxfordre.com/americanhistory). (c) Oxford University Press USA, 2018. All Rights Reserved. Personal use only; commercial use is strictly prohibited (for details see Privacy Policy and Legal Notice).

date: 21 January 2019

History of the U.S. Supreme Court

Summary and Keywords

The Supreme Court of the United States stands at the head of the nation’s judicial system. Created in Article III of the Constitution of 1787 but obscured by the other branches of government during the first few decades of its history, the Court came into its own as a co-equal branch in the early 19th century. Its exercise of judicial review—the power that it claimed to determine the constitutionality of legislative acts—gave the Court a unique status as the final arbiter of the nation’s constitutional conflicts. From the slavery question during the antebellum era to abortion and gay rights in more recent times, the Court has decided cases brought to it by individual litigants, and in doing so has shaped American constitutional and legal development. Composed of unelected justices who serve “during good behavior,” the Court’s rise in stature has not gone uncontested. Throughout the nation’s history, Congress, the president, and organized interest groups have all attempted to influence the Court’s jurisdiction, composition, and decision making. The Court’s prominence reflects Americans’ historically paradoxical attitudes toward the judiciary: they have often been suspicious of the power of unelected judges at the same time that they have relied on independent judicial institutions to resolve their deepest disputes.

At the time the framers created the U.S. Supreme Court, there had never before been such an institution in America. Under the Articles of Confederation, state courts were expected to resolve legal controversies, almost all of which were expected to occur at the state level. The impetus for the U.S. Supreme Court came from the desire for a more powerful central government and the need for a judicial tribunal that would bring a sense of finality and uniformity to American law. Article III of the Constitution established a federal judiciary. In addition to a federal court system, Article III provided that “the judicial power shall be vested in one supreme court” and defined both its original and appellate jurisdiction. Its judges would serve “during good behavior,” meaning for life, unless impeached and removed. Other matters were left to the legislative branch to decide. Congress would set the number of Supreme Court justices, determine the structure of the lower federal courts, and establish “exceptions” and “regulations” of the Court’s appellate jurisdiction. Perhaps most important, the Senate would, through its “advice and consent,” confirm or reject presidential nominees for membership on the Court. Despite these checks on judicial power, the framers confronted popular fears of an all-powerful national judiciary, and Alexander Hamilton tried to allay such concerns in Federalist 78. Hamilton paradoxically downplayed the potential power of the Court—he described it as “the least dangerous” branch—while at the same time arguing for an independent judiciary to prevent Congress from passing unconstitutional legislation.1

For the first decade or so of its history, the Supreme Court seemed more like “the least dangerous” branch than a vigorous defender of the Constitution. In the Judiciary Act of 1789, Congress provided that the Court would have six justices, who also served as federal circuit court judges. This meant that they “rode the circuit,” an onerous task that involved travelling hundreds of miles—often via horse and buggy—as they spent most of their time hearing cases on appeal from the federal district courts. The job was anything but glamorous. When the justices did meet together, the Court lacked its own chamber, much less its own building. The justices first convened in the Royal Exchange Building in New York City, and they continued to share space with various government entities after the national capital moved from New York to Philadelphia and eventually to Washington, DC.

The first chief justice, John Jay, soon realized that the institution possessed neither the legitimacy nor the caseload of state courts. Between 1790 and 1801, only eighty-six cases appeared on the Supreme Court’s docket—the majority of them admiralty disputes that dealt with piracy, privateers, and prize law.2 When the Court ruled against the state of Georgia in Chisholm v. Georgia (1793), a case in which a South Carolina merchant sued the state for the value of goods supplied during the Revolutionary War, Georgia refused to appear in court, citing its immunity as a sovereign state. Even though the Constitution assigned original jurisdiction to the Supreme Court in such instances, the state refused to abide by the Court’s decision. Georgia promptly pushed for ratification of the Eleventh Amendment, which, after being quickly ratified in 1795, withdrew such jurisdiction from the Court. The episode sent a message to Jay and his colleagues that states retained significant power in the new constitutional order.

The Jay Court did set some important precedents—refusing to issue advisory opinions to the president, for example, and exercising judicial review without defining it as such in Hayburn’s Case (1792), a dispute involving pension claims. But overall it was Jay’s “reluctance,” rather than his assertiveness, that defined the Court during its first decade.3 In 1794, the chief justice abandoned his position in order to carry out a diplomatic mission and officially resigned the following year to become governor of New York. Tellingly, the most contentious constitutional question of the 1790s—whether the Alien and Sedition Acts of 1798 violated the First Amendment—never came before the Supreme Court.

The Marshall Court

The appointment of John Marshall as the fourth chief justice in 1801 marked a turning point. A native Virginian, Marshall had served in the Continental Army and survived winter at Valley Forge with General George Washington. Such experiences deepened the young Virginian’s commitment to the nation (see Figure 1).

After holding a variety of important offices, including emissary to France and secretary of state, Marshall’s appointment came at a moment of intense debate over the federal judiciary. The Judiciary Act of 1801, enacted in the last days of the administration of Federalist president John Adams, allowed the outgoing president to nominate some fifty new judges. The incoming Democratic-Republicans, who controlled Congress, promptly repealed the measure, thus restoring the organization of the federal courts as it had been under the Judiciary Act of 1789.

A dispute over one of Adams’s appointments culminated in Marbury v. Madison (1803). Although he had been nominated by Adams as a justice of the peace in the District of Columbia (under a statute other than the Act of 1801), William Marbury never received his commission. Marbury sued the incoming secretary of state James Madison, asking the Court to issue a writ of mandamus (an order), which would have required Madison to deliver the commission. In a deft bit of legal and political maneuvering, Chief Justice Marshall ruled that Marbury was entitled to his commission but that the Court could provide no remedy. The writ for which Marbury had asked had been provided for in section 13 of the Judiciary Act of 1789, and Marshall claimed that Congress had expanded the Court’s original jurisdiction in violation of the Constitution. Building on Hamilton, Marshall defined the Constitution as a supreme written law, subject to interpretation by the Court. “It is emphatically the province of the judicial department to say what the law is,” the chief justice wrote, thereby asserting the power of judicial review.4

In crafting his unanimous opinion of the Court, Marshall accomplished much. He balked at expanding the Court’s original jurisdiction, sensing that the Court’s real power would be in its appellate (review) jurisdiction. He avoided a showdown with President Thomas Jefferson (a hated distant cousin) over Marbury’s appointment while at the same time putting the administration on notice that the Court would assume a more assertive role as a co-equal branch of government. Still, Marshall neither created judicial review from whole cloth nor asserted judicial supremacy. He simply claimed the same power for his court that state supreme courts had been exercising since the 1780s. Marbury attracted relatively little attention at the time, but it took on legendary status in the 20th century, when the Court frequently cited the case in the service of a more activist agenda.5

The Marshall Court’s most significant decisions came during the 1810s. All built on Marbury insofar as they demonstrated the potential of judicial review, and all embodied Marshall’s determination for the Court to speak with a unified voice in the cause of national consolidation. In Fletcher v. Peck (1810), a dispute involving land grants made by corrupt legislators in Georgia, the Court invalidated the attempt of a subsequent legislature to rescind the grants, claiming that the rescinding act violated the Constitution’s protection against state impairment of contracts. Not only did the opinion mark the first time the Court overturned a state legislative enactment, it also promoted a stable economic environment for creditors and investors. Martin v. Hunter’s Lessee (1816) upheld the constitutionality of section 25 of the Judiciary Act of 1789, which allowed the removal of cases that involved federal questions from state courts to federal courts. Justice Joseph Story of Massachusetts wrote the opinion in which he rebuked the Virginia Court of Appeals for refusing to abide by a previous Supreme Court decision and attacked the principle of state sovereignty on which the state court had relied. The whole American people—not the states—were sovereign, Story argued, and state courts needed to submit to the Supreme Court as the ultimate arbiter of the Constitution. The pinnacle of judicial nationalism came in McCulloch v. Maryland (1819), where the Court upheld the constitutionality of the Second Bank of the United States and invalidated Maryland’s attempt to tax it. Marshall’s brilliant opinion advanced the notion of the implied powers of Congress, while again striking down a state law. The sum of these and other decisions, according to a leading biographer, was Marshall’s desire to use judicial power to create “a national market, an arena in which goods and credit moved without hindrance across state lines.”6 From their modest chamber in the basement of the capitol, Marshall and his six colleagues—Congress added a seventh justice in 1807—established the Court as a co-equal branch of government.

Despite its boldness during the early years, the Marshall Court eventually found itself on the defensive. Marshall’s combination of legal skill and personal winsomeness, a twelve-year period of continuity in the Court’s personnel, and the convivial atmosphere of the Washington boardinghouse in which the justices lived had contributed to consensus on the Court. Marshall institutionalized the practice of issuing an “opinion of the Court,” in contrast to the pattern of seriatim decision making that had generally been practiced before his arrival. (Under English and early American tradition, appellate courts had decided cases through the separate opinions of each participating judge.) But changing personnel on the Court beginning in 1823, the erosion of the boardinghouse culture after justices began bringing their wives to Washington, and the election of Andrew Jackson as president in 1828 all contributed to the demise of the nationalist consensus.

Marshall acquired a formidable foe in Jackson, who sought the removal of the Cherokee from the southeast, in defiance the decision in Worcester v. Georgia (1832), in which the Court had recognized the principle of tribal sovereignty. Even more embarrassing for the Court, Jackson challenged the constitutionality of the Bank and vetoed a re-charter bill. Referring to the Court’s opinion in McCulloch, Jackson expressed his belief in the departmental theory of government, the idea that each branch possessed the power to interpret the Constitution. “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges,” Jackson contended, “and on that point the President is independent of both.”7 By the end of Marshall’s time on the Court, the “great chief justice” was sick, tired, and diminished. In Barron v. Baltimore (1833), the last important decision of Marshall’s tenure (before his death in 1835), the justices unanimously held that the rights guaranteed in the Bill of Rights placed no limitations on state power.8 It was a far cry from the Court’s early nationalistic decisions.

The Taney Court

Under Marshall’s successor, Roger B. Taney of Maryland, continuity, more than change, marked constitutional development. Horrified at Jackson’s appointment of Taney (the author of the “bank veto message”), the president’s Whig opponents initially seemed certain that the new chief justice would undermine contracts, empower the states, and weaken the Court. Taney did set a different tone by opening his first term wearing the more democratic long trousers, instead of the traditional knee breeches. But the substance of the Court’s opinions marked less of a change than conservative elites feared. In Charles River Bridge v. Warren Bridge (1837), the Court rejected the idea that a corporate charter issued by a state contained an implied monopoly. Taney held in favor of the new (and toll-free) Warren Bridge, which threatened the business of the established (and toll-operated) Charles River Bridge. The opinion exhibited Jacksonian opposition to monopoly power, support for new investment and technological advancement, and a commitment to promoting the welfare of “the community.” Although Story issued a vigorous dissent championing traditional respect for property rights, Taney’s reliance on a Marshall-era precedent, Providence Bank v. Billings (1830), where the Court strictly interpreted a bank charter, demonstrated that the decision did not necessarily represent a sharp break.

Other decisions seemed more respectful of national power than early critics had feared. When it came to the admiralty jurisdiction of the federal courts, Taney proved even more nationalistic than his predecessor. For years the Court had operated under a Marshall Court decision that restricted federal jurisdiction to waters within the ebb and flow of the tide. Economic growth and technological change necessitated legal reform, and in 1845 Congress extended admiralty jurisdiction to federally licensed vessels employed in interstate commerce on the Great Lakes and connecting waterways. In Genesee Chief v. Fitzhugh (1851), Taney upheld the 1845 statute and ruled that all public navigable waters came within the jurisdiction of the federal courts. Taney and his colleagues, meanwhile, struggled to define the specific parameters of national and state regulatory authority over commerce, and they eventually adopted a compromise in Cooley v. Board of Wardens (1852), where the Court held that areas requiring national uniformity would be the exclusive domain of Congress, while other matters of commercial regulation would be the purview of states. If a common thread connected these decisions, it was judicial pragmatism rather Jacksonian ideology.9

Although moderation reigned supreme in most areas of the law, pro-slavery extremism ended up defining the legacy of the Taney Court. The Judiciary Act of 1837, enacted just after Taney’s appointment, had added two new southwestern circuits to the federal court system and two new justices to the Court, bringing the total number of justices to nine. At a time when positions on the Supreme Court represented geographically defined circuits, Southerners filled both seats. A succession of Democratic presidents during the 1840s and 1850s, moreover, meant that even the Northern vacancies on the Court were filled by men who personified the Democratic Party’s defense of slaveholders. The Court thus came to embody the pro-slavery position. After issuing a series of moderately pro-slavery rulings during the 1840s and 1850s, in Dred Scott v. Sandford (1857) the Court issued an extreme pro-slavery decision that nearly undermined its legitimacy in the North. Scott, a Missouri slave who had been owned by an army surgeon, sued for his freedom after travelling and living for an extended period in free territory. The enslaved man’s case made it to the Court at a fortuitous moment, as the nation debated the rights of slaveholders to take their slave property into federal territories (see Figure 2).

Some believed that the Court had a duty to resolve the slavery issue in a far-reaching decision, and the justices did not disappoint. In a 7-2 ruling, the Court held that Scott remained a slave, despite his sojourn in free territory. More important, Taney’s opinion held that Congress could not ban slaveholding in the territories. Such a ban violated due process under the Fifth Amendment, he argued. Furthermore, African Americans, in the chief justice’s words, “had no rights that the white man was bound to respect.”10 Taney’s opinion was as definitive as it was all-encompassing: absolute rights for white slaveholders in the territories, “no rights” for blacks, whether enslaved or free. The decision made political compromise over slavery nearly impossible, stirred the opposition of free black activists in the North, and abetted the rise of the decision’s most articulate political opponent, Republican Abraham Lincoln.11

As president, Lincoln transformed the Taney Court. After being elected in 1860, he openly criticizing Dred Scott in his inaugural address (with Taney seated nearby), and a few months later when the chief justice held unconstitutional Lincoln’s suspension of the writ of habeas corpus after the outbreak of the Civil War in a circuit opinion, the president ignored the ruling.12 A succession of vacancies gave Lincoln the opportunity to reshape the Court in wartime. The president and Republicans in Congress hoped to preserve the Union and break the Southern slave power by filling the openings with Northerners and Unionists, while also realigning the federal judicial circuits so that the South had fewer seats on the Court. Congress concentrated all of the slaveholding states into three circuits rather than five, thus allowing, for example, Lincoln to fill the deceased Virginian Peter V. Daniel’s seat with an Iowan, Justice Samuel Miller. In 1863, Congress went further, creating an additional western circuit and a tenth seat on the Supreme Court, in order to accommodate the rapid increase of the population of California. The changing personnel of the Court affected its decision making. The Court never heard a case involving Lincoln’s most important policy, the Emancipation Proclamation, but a 5-4 majority did uphold the Union naval blockade of the Confederacy in the Prize Cases (1863). When Taney died in 1864, Lincoln replaced him with Salmon P. Chase, an abolitionist and the fifth of Lincoln’s appointees, thus completing the transformation of the Court from a bastion of pro-slavery thought to a tribunal committed to liberty and union.13

Reconstruction and the Late 19th Century

The post–Civil War years brought further judicial reform. Following Lincoln’s death, in 1866 Congress enacted legislation reducing the Court’s size by attrition to seven, thus preventing President Andrew Johnson—a fierce opponent of congressional reconstruction plans—from nominating any justices. Three years later, Congress enacted the Judiciary Act of 1869, which fixed the number of justices at nine, provided retirement pay for members of the federal judiciary, and decreased the circuiting riding requirements of the justices. The Removal Act of 1875, most importantly, expanded the original and appellate jurisdiction of the federal courts, which led to a dramatic increase in the Court’s caseload. By 1880, there were 1,212 cases sitting on the docket of the Supreme Court (only about a fourth of which it decided), a far cry from the handful of cases heard each year by the Jay Court.14

As these institutional changes occurred, the Court grappled with the meaning of the newly enacted Thirteenth (1865), Fourteenth (1868), and Fifteenth Amendments (1870). Although the end of slavery proved definitive, the scope and definition of federally protected rights under the new amendments were ambiguous. Some of the framers of the Fourteenth Amendment had argued that the “privileges and immunities” protected from state interference were expansive—that they included all of the guarantees of the Bill of Rights—while others had not envisioned such an expanded role for the federal government. During an era in which Republicans dominated all three branches of government, opinions within the party varied. In the Slaughterhouse Cases (1873), the Court declared that the Fourteenth Amendment had been intended to help the former slaves, so having been asked by a group of white butchers to apply the guarantees of the Privileges and Immunities Clause to them in order to strike down a monopoly statute, the justices refused, apparently leaving most matters regarding civil rights to the states. The Court similarly dismissed attempts by white women to claim rights under the Fourteenth Amendment. In a pair of cases, the justices held that women’s citizenship included neither the right to practice law nor the right to vote.15

When the civil and political rights of African Americans were at issue during the 1870s and 1880s, the Court under Chief Justice Morrison Waite exhibited a mixed record. The justices unanimously protected black voting rights in cases such as Ex parte Siebold (1880) and Ex parte Yarbrough (1884), where the Court upheld federal control over elections and the Reconstruction-Era Enforcement Acts, respectively. But the defeats stood out more than the victories. The most poignant loss came in the Civil Rights Cases (1883), when the Court struck down the Civil Rights Act of 1875, a federal law that banned racial discrimination in public accommodations, such as restaurants, as exceeding congressional power under the Fourteenth Amendment. African Americans decried the opinion as a betrayal, and the Court’s narrow interpretation of the Fourteenth Amendment prefigured its acceptance of state segregation statutes. In Plessy v. Ferguson (1896), under the chief justiceship of Melville Fuller, the Court upheld a Louisiana law that provided for separate but equal railway cars for whites and blacks. The 7-1 majority opinion, written by Massachusetts Republican Henry Billings Brown, described the state law as a “reasonable” regulation that embodied the habits and traditions of the people of Louisiana and did not run afoul of the Fourteenth Amendment. Although Justice John Marshall Harlan’s dissent likened the majority opinion to Dred Scott, a Court composed almost entirely of Republicans significantly narrowed federal protection of the rights of African Americans.16

At the same time, though, the justices broadly interpreted the Fourteenth Amendment in order to protect the vested rights of property. The nation underwent rapid economic expansion and industrialization during this period, and a trio of controversial decisions in 1895 put the Court squarely on the side of capitalists (see Figure 3).

In Pollock v. Farmers’ Loan and Trust, the Court struck down the constitutionality of a redistributive federal income tax, despite the fact that the income tax enacted during the Civil War had previously been sustained. At the same time, the Court offered a narrow interpretation of the Sherman Anti-trust Act, thus leaving intact the sugar monopoly in United States v. E.C. Knight Co., and upheld the use of the injunction as a tool for breaking labor strikes in In re Debs. Such decisions spurred popular opposition to the Court, thereby helping to fuel the populist revolt of the late 1890s.17

The Due Process Clause of the Fourteenth Amendment proved the most potent tool of judicial power in support of capitalism. Although the justices had refused to include the right to practice one’s trade as among those rights guaranteed in the Privileges and Immunities Clause, the Court later recognized that right under the Due Process Clause. In Allgeyer v. Louisiana (1897), the Court held that the term “liberty” in the Fourteenth Amendment embraced “the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”18 This broad interpretation of the “liberty” guaranteed by the Due Process Clause now meant that state economic regulations potentially violated constitutional rights and that the Court would play an active role in deciding such matters. Although in Slaughterhouse the Court had refused become a “perpetual censor” over state regulations, Allgeyer pointed toward the concept of “substantive due process,” the idea that due process implied an irreducible sum of rights with which government could not interfere.19 It would be up to judges to protect such rights.

The pinnacle of judicial review of state economic regulation came in Lochner v. New York (1905). The case involved New York’s 1895 Bakeshop Act, passed to protect the health and safety of bakers, who often worked long hours in poorly ventilated spaces. Susceptible to lung ailments, bakers had successfully lobbied for a law that prevented shop owners from employing bakers for more than ten hours a day or sixty hours a week. A 5-4 Court struck down the measure as a violation of the Due Process Clause of the Fourteenth Amendment. The majority opinion, written by Justice Rufus W. Peckham, the same justice who had written the opinion in Allgeyer, further expanded the meaning of due process to include the “right” of bakers to contract freely with their employers without state interference. For this reason, the law was unconstitutional. “There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker,” Peckham wrote. “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action.”

The majority opinion prompted a famous dissent by Justice Oliver Wendell Holmes, who saw the pernicious influence of Social Darwinism and laissez-faire economic theory. “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,” Holmes tersely wrote, referring to the famous late 19th-century social theorist.20 Scholars have vigorously debated whether the Court in Lochner protected constitutional liberty or, as Holmes believed, bowed to corporate interests. Although formalistic judges claimed to be following precedent and legal principle, critics at the time and since charged that the justices relied on their own prejudices to create a right nowhere stated in the Constitution, the right to contract. Other critics have pointed out that the entire concept of substantive due process originated in Dred Scott, where the Taney Court had similarly used the Fifth Amendment to create an un-enumerated right to hold slaves. Regardless of judicial motives, the ideas expressed by the majority in Lochner remained part of the constitutional dialogue for the next three decades.21

Progressivism and the Birth of the Modern Court

Beginning at the end of the 19th century, rapid urban and industrial growth widened the gap between rich and poor, prompting religious reformers, interest groups, and an army of experts and bureaucrats to attempt to solve society’s deepest problems. A wave of progressive legislation ensued, at both the state and national levels, designed to ameliorate conditions for workers, immigrants, women, and children. Although the doctrine of liberty to contract posed a barrier to such reform legislation, it did not wholly impede it. When a maximum-hours statute designed to protect women workers came before the Court in Mueller v. Oregon (1908), progressive lawyer Louis Brandeis responded to Lochner by attempting to show how women’s work affected their health and safety. His social-scientific brief accumulated mounds of evidence about factory conditions and women’s health, in order to justify the statute. Brandeis’s new brand of advocacy, based on data and expertise, persuaded the justices to uphold the law (see Figure 4).

Figure 4. Louis Brandeis. The “Brandeis Brief” infused facts, data, and expertise into the Court’s decision making. In 1916, President Woodrow Wilson appointed Brandeis to the Court, making him the first Jewish justice.

Other states enacted similar measures, and more often than not the Court allowed such regulations—particularly for women’s protection—to stand.22 At the national level, the combination of the federal commerce power and the demands of war prompted the Court to uphold a variety of federal regulations. These included a law forbidding interstate transportation of lottery tickets, a law banning colored margarine, and laws limiting dissenting speech during World War I. An exception was Hamer v. Dagenhart (1918), where a divided Court, with Holmes again issuing a notable dissent, struck down a federal statute prohibiting child labor as exceeding congressional power.23

While the Court grappled with progressive-era legislation, many of the institutional trappings of the modern Supreme Court began to take shape. The Evarts Acts of 1891 had created intermediate federal courts of appeal and finally brought an end to the practice of circuit riding. Not only did this ensconce the justices in Washington, it also decreased the influence of geography upon Supreme Court appointments, as presidents no longer felt obliged to fill a vacancy with someone from the circuit that the seat represented. The original “California Seat,” for example, created in 1863 and held by Californians Stephen J. Field and Joseph McKenna, eventually went, in 1925, to Harlan F. Stone, a New Englander. Other modern practices also took shape. In 1921, Congress provided for the official reporting of the Court’s decisions and in 1924 passed legislation permanently providing for a clerk for each Supreme Court justice. Most important, the Judiciary Act of 1925 replaced mandatory review of appeals with discretionary review. In response to the overwhelming caseloads of the late 19th century, the law gave the Court control over its own docket.

The conflict between progressives’ urge to use legislative power to regulate the conditions of labor and conservatives’ desire to employ substantive due process to preserve economic liberty eventually came to a head. President Woodrow Wilson’s nomination of Brandeis in 1916, who won confirmation despite strong opposition from the legal and business establishment, had given progressives a strong voice on the Court. But after two conservative appointments by President Warren Harding in the early 1920s, during the chief justiceship of former president William Howard Taft, a bloc of four justices reinvigorated the notion of liberty to contract. Referred to by critics as the “Four Horsemen” (a reference to the four horsemen of the apocalypse described in Revelation 6:1–8), these justices led the charge against a Washington, DC, minimum-wage law for women, which the Court struck down in Adkins v. Children’s Hospital (1924). When the Great Depression hit and President Franklin Roosevelt enacted measures to bring about economic recovery and reform, the “Four Horsemen” stuck to their constitutional principles, thereby thwarting the president’s agenda. In 1935–1936, during the chief justiceship of Charles Evans Hughes, they took the lead in invalidating a series of New Deal measures, and in Moorehead v. New York ex rel. Tipaldo (1936), one of the most unpopular decisions of the era, a 5-4 Court struck down a New York minimum-wage law for women and children, again as a violation of liberty to contract.

After his landslide reelection in 1936, Roosevelt responded by proposing a bill that would have added up to six justices to the Court. Under his reform proposal, a new justice would have been added to the Court each time a justice reached the age of seventy and did not voluntarily retire, allowing the Court’s membership to expand to up to fifteen justices. Justified as a way to improve efficiency, the proposal went nowhere, as it came under heavy criticism as an attempt to pack the Court. (All of the Four Horsemen were over seventy.) The Court’s willingness to uphold a state minimum-wage law enacted in West Coast Hotel v. Parrish (1937), followed by the retirement of Justice Willis Van Devanter, the oldest of the Four Horsemen, made the question of judicial reform moot. Eventually, during twelve years in office, Roosevelt appointed nine justices to the Court, more than any president since George Washington.

As conflict over the New Deal and the Supreme Court came to the forefront of national life, the justices finally gained their own building. In 1925, Chief Justice Taft had begun lobbying Congress for a building for the Court, which ever since 1860 had been holding sessions in the old Senate chamber of the capitol. Congress responded favorably, and work later began on a grand neoclassical edifice of white marble, designed by the architect Cass Gilbert, located adjacent to the Library of Congress and across from the east front of the capitol (see Figure 5).

Although the building opened in 1935, during Hughes’s chief justiceship, it took several years for all of the justices to move into their new offices in the “Marble Palace,” as many continued to work out of their homes. But the ornate courtroom, which contained an elevated bench for the justices in front of a row of marble columns and heavy red curtains, immediately came to symbolize the authority of the High Court.

By the late 1930s, the Court’s majestic new home reflected the outsized role the Court played in American life. In a series of cases, the Court laid out an expansive interpretation of the federal commerce power and upheld all of Roosevelt’s New Deal legislation. At the same time, the justices seemed to set a new agenda. In 1937, the Court indicated in Palko v. Connecticut that it would continue the process that it had begun in the mid-1920s of “incorporating” certain guarantees from the Bill of Rights to apply against the states through the Due Process Clause of the Fourteenth Amendment. The following year, the Court sent another signal in “Footnote Four” of its opinion in United States v. Carolene Products, where the majority expressed an interest in hearing cases where non-economic liberty and the rights of “discrete and insular minorities” were at stake. Influenced by legal realism in the academy and New Deal liberalism in Washington—as well as a bevy of interest groups that had emerged during the progressive era—these decisions signaled the beginning of a shift that some have called the Constitutional Revolution of 1937. Although halted for a time by World War II, when the Court upheld Roosevelt’s policy of interning thousands of Japanese Americans in Koretmatsu v. United States (1944), the momentum in the immediate postwar years pointed toward an interest in civil liberties and civil rights.24

The Warren Court

The death of Chief Justice Fred Vinson in 1953 and President Dwight D. Eisenhower’s appointment of Earl Warren to replace him marked another turning point in the Court’s history. A California native who had served as a local prosecutor and state attorney general before becoming a three-term Republican governor of the state, Warren held progressive assumptions about the law. He believed, like Holmes, that the life of the law was experience rather than logic. He believed, like Brandeis and other reformers, that sociological evidence helped judges make better decisions. And he believed, like Roosevelt and the New Dealers, that law possessed the power to bring about transformative change.

When Warren arrived in the midst of the justices’ deliberations over Brown v. Board of Education (1954), a challenge to racially segregated schools brought by black plaintiffs aided by the NAACP, the chief justice immediately assumed the mantle of leadership. Here his political experience proved critical (see Figure 6).

Figure 6. Chief Justice Earl Warren. The tenure of Chief Justice Warren, pictured here while serving as governor of California, witnessed some of the most far-reaching changes in American constitutional history. Courtesy of the Library of Congress, LC-USZ62-41653.

Under Plessy, segregation had been the law in the South for more than five decades. Knowing the importance of the Court speaking with one voice on so controversial a matter, Warren persuaded two wavering justices to sign onto a brief unanimous opinion. The Court downplayed the significance of whether the framers of the Fourteenth Amendment had intended to ban racial segregation in education by arguing that public education played a far more important role in the mid-20th century than ever before. Public schools, the Court argued, educated Americans for citizenship and military service. Even if all facilities could in fact be equalized, separate could never be truly equal. Citing sociological studies indicating that segregation created a “feeling of inferiority” in black children, the Court held that “separate but equal was inherently unequal,” and thus violated the Equal Protection Clause of the Fourteenth Amendment. Warren postponed a decision on the appropriate remedy, believing that the Court’s definitive opinion on the merits made a strong statement in support of justice and equity—and a necessary declaration of American values in the midst of the Cold War. In a more restrained follow-up decision the next year, the Court left the matter of school desegregation to local school districts, which it ordered to develop plans “with all deliberate speed.”25

The most immediate response to Brown was a white Southern backlash. In March 1956, less than two years after the initial decision, 101 white Southern members of Congress signed the “Southern Manifesto,” which decried the ruling as “a clear abuse of judicial power” and encouraged massive resistance to the decision.26 As some local school districts dragged their feet and others closed their schools entirely, the Court reiterated its commitment to desegregation in Cooper v. Aaron (1958). Here the Court issued its most all-encompassing statement of its authority. With all nine justices signing the opinion, an unprecedented action, the Court held that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and concluded that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.”27

During the next decade, the Warren Court issued a succession of landmark decisions, all of which expanded the scope of constitutionally protected liberties. Joined by a cohort of liberal justices led by William Brennan and urged on by amicus briefs written by the American Civil Liberties Union (ACLU), Warren deployed the Bill of Rights, the Fourteenth Amendment, and the Commerce Clause to bring about far-reaching changes in American life. The Court applied several provisions of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment in order to protect criminal defendants, strengthening safeguards against unreasonable searches and seizures in Mapp v. Ohio (1961) and self-incrimination in Miranda v. Arizona (1966), while expanding the right to counsel in Gideon v. Wainwright (1962). The Court advanced the notion of separation of church and state, striking down a New York state prayer said in public schools as a violation of the First Amendment’s Establishment Clause in Engel v. Vitale (1962). The Court upheld one of the most significant statutes of the era, sustaining the Civil Rights Act of 1964 by offering a broad interpretation of federal commerce power in Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964). And in Griswold v. Connecticut (1965), finally, it struck down a Connecticut anti-contraception statute, holding that several provisions of the Bill of Rights implied the existence of a constitutional right of personal privacy.28

The Griswold decision, because it appeared to create an un-enumerated right (like Lochner’s “liberty to contract”), symbolized the means the Warren Court seemed willing to employ in order to reach its desired ends. Even Justice Hugo Black, a liberal champion, argued in dissent that the majority had read too much into the constitutional text.29 Every one of these rulings held great significance, and the fact that the justices issued all these decisions within a span of five years surely marked the Warren era as the most dynamic and influential in the history of the Court. There was perhaps no greater symbol of the period than President Lyndon B. Johnson’s appointment in 1967 of Thurgood Marshall, the lead attorney for the NAACP in Brown, as the first African American associate justice on the Supreme Court.

While liberals hailed these decisions as victories for the cause of justice, conservatives complained about what they described as “judicial activism,” a free-wheeling style that had supposedly allowed jurists to advance their personal beliefs regardless of the limits imposed by the constitutional text. The backlash against the Warren Court, which had been brewing since Brown, particularly in the Southern states, came to a head in 1968, when Republican presidential candidate Richard Nixon made “law and order” one of the themes of his campaign and vowed to appoint so-called strict constructionists to the Court. Warren’s retirement in 1968, as well as the resignation of fellow liberal Abe Fortas, created the first two of four openings on the Court eventually filled by Nixon.30

The Burger Court

Nixon’s appointee for the chief justice position, Warren E. Burger, a Warren Court critic, seemed to portend a jurisprudential shift. A self-made man who had attended night school in Minnesota and worked his way up in Republican circles, Burger came to the Supreme Court from the U.S. Court of Appeals for the District of Columbia. Under his leadership, the Court performed as expected in some areas—it placed limits on the procedural protections for criminal defendants, for example—but in other areas it expanded the rights established by the Warren Court. The most significant example of the Burger Court’s willingness to build on Warren-era jurisprudence came in Roe v. Wade (1973). In that case, a reflection of both the contemporary sexual revolution and the feminist movement, a 7-2 majority invalidated a Texas abortion statute as a violation of the right to privacy, as well as the notion of liberty protected in the Due Process Clause. In an elaborate opinion written by Justice Harry Blackman, a Nixon appointee and a former counsel for the Mayo Clinic, the Court established a trimester framework. According to the majority, women possessed a constitutional right to an abortion during the first trimester, the state could regulate the practice in the interest of maternal health and safety during the second, and states could proscribe the practice in the third.31

The Burger Court also dealt with the complicated legacy of Brown. Beginning in the late 1960s, the Court oversaw a brief experiment in busing as a means of desegregating schools, only to abandon the practice in Millikin v. Bradley (1974), when it ruled that a desegregation plan for one district could not involve another non-segregating district. In doing so, the opinion acknowledged—and accelerated—white flight from urban school districts, as middle-class whites moved to the suburbs. Meanwhile, in the face of a challenge from a white plaintiff that racial preferences in higher-education admissions violated the Civil Rights Act of 1964, meanwhile, the Court upheld the use of race as a factor in Regents of the University of California v. Bakke (1978), as long as the university did not establish a system of “fixed quotas.” The latter two decisions, both 5-4, reflected the deep divisions among the justices on issues related to the legal remedies for racial discrimination. Ironically, in light of subsequent events, at the time it was decided Roe was less controversial.32

The Burger Court played a critical role in resolving the greatest constitutional crisis of the late 20th century. For several decades, with the exception of the Court’s thwarting President Harry Truman’s seizure of the nation’s steel mills during the Korean War, presidential power had developed unchecked. But when Nixon claimed that the notion of “executive privilege” permitted him to ignore a subpoena duces tecum from the special prosecutor investigating the Watergate scandal, the justices issued a stinging rebuke. In an 8-0 opinion (with Justice William Rehnquist, who had worked for Nixon, recusing himself), the Court held in United States v. Nixon (1974) that the claim of executive privilege always needed to be weighed against the fair administration of criminal justice. In this instance, holding that the claim of privilege was unjustified, the Court ordered the release of White House tapes sought by the special prosecutor. When the tapes revealed Nixon’s involvement in the scandal, the president resigned. The fact that all eight justices agreed in the matter, including three who owed their positions on the Court to Nixon, confirmed Americans’ faith in an independent judiciary.33

With stark white hair and a resonant voice, Burger looked the part of a chief justice, but the Burger Court witnessed increasing tensions among the justices and consistent complaints about his leadership. The usually secretive life of the justices came out in the open in 1979 when two investigative reporters published The Brethren, a national bestseller based on extensive interviews with the justices’ clerks.34 A few years later, President Ronald Reagan’s appointment of the first woman justice, Arizonan Sandra Day O’Connor, in 1981, again thrust the Court into the spotlight, this time in a positive way. Confirmed in the Senate 99-0, O’Connor eventually became a critical swing vote on a divided Court. Despite controversy over his leadership, Burger thrived in the nonjudicial aspects of his position, and he succeeded in bringing about reforms in the Court’s operations that included cost efficiencies as well as the use of computer technology. But tensions continued to simmer, as the Court issued more 5-4 decisions—in raw numbers and as a percentage of total opinions—than ever before.35

One of those 5-4 decisions, upholding state anti-sodomy laws, punctuated the Burger Court’s uneven legacy. In a 5-4 decision in Bowers v. Hardwick (1986), the Court, denying that gay sex fell under the privacy protections of the Fourteenth Amendment, upheld Michael Hardwick’s conviction for engaging in homosexual activity in his home, in violation of a Georgia statute. A few months after the term ended, Burger retired, after which President Reagan elevated Justice William Rehnquist, a Nixon appointee, to the center chair. As if to put a final coda on the era, four years after Bowers, a retired Justice Lewis Powell expressed public regret about having supplied a fifth vote in the case.36

The Age of Constitutional Polarization

The tensions of the Burger years highlighted the liberal-conservative split that has come to dominate the Court’s recent history. Nowhere has this been more evident than in the nomination and confirmation process. Although President Reagan’s nominations of O’Connor and Antonin Scalia (the first Italian-American justice) in 1986 sailed through the Senate unopposed, Reagan’s 1987 selection of Robert Bork, a distinguished scholar and federal circuit judge who possessed a deeply conservative worldview, set off a firestorm. In his published articles and judicial opinions, Bork expressed strong opposition to the Warren Court and its legacy, as he believed that the Constitution contained neither a right to privacy nor a right to an abortion. With Democrats in control of the Senate and the retiring Powell’s swing seat at stake, opponents waged a public campaign against Bork’s confirmation, which included television ads funded by liberal interest groups. Despite Reagan’s numerous statements of support, Bork’s nomination went down to defeat, 58-42, with six Republican senators opposing his confirmation.37 Although roughly one in six nominees has suffered rejection, in one form or another, at the hands of the Senate in U.S. history, the Bork nomination seemed to portend a more public and more polarized confirmation process.

The Bork battle in particular mirrored the larger debate over constitutional interpretation during the late 1980s. Key to the definition of constitutional conservatism by this time was the notion of “original intent,” a concept advanced by Bork, as well as the Reagan Justice Department. Reacting against decisions in Miranda, Griswold, and Roe, advocates of original intent condemned judicial activism and argued that judges should adhere to the meaning of the constitutional text as it would have been understood by the Constitution’s founders. Justice William Brennan, a liberal stalwart, took issue with these critics, calling original intent “arrogance cloaked in humility.” “[T]he ultimate question must be,” Brennan asserted, “what do the words of the text mean in our time?”38 In 1991, the combustible mix of the Bork precedent, the original-intent debate, and salacious charges of sexual harassment caused the contest over Clarence Thomas’s nomination to be every bit as dramatic as the Bork spectacle. Adding to the intensity was the fact that President George H. W. Bush’s nomination of the conservative Thomas to replace Thurgood Marshall threatened to move the Court in a decidedly conservative direction. With a national television audience tuned in, Thomas survived the allegations by a former employee at the Equal Employment Opportunity Commission, winning confirmation by a 52-48 margin.

The Court did become more conservative under Chief Justice Rehnquist, but as has frequently been true in the history of the Court, the tug of precedent prevented a wholesale shift in constitutional development. The Court twice struck down laws banning flag burning, for example, thus building on decades of decisions dating back to the 1930s that had expanded freedom of speech. The Court did generally side with police and prosecutors in cases involving the rights of criminal defendants, but the justices refused to overturn Miranda, the Warren-era landmark, citing the way in which the decision had become embedded in the nation’s law-enforcement system.39 Perhaps most remarkably, Roe remained intact. The rise of conservative Christians in national politics, the Republican Party’s official adoption of an anti-abortion position, and a string of seven consecutive Republican-appointed justices between 1975 and 1991 all seemed to point to the decision’s demise. Yet, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), five justices—all appointed by Republicans—affirmed a woman’s right to an abortion. Although the majority upheld a variety of restrictions on the practice, it struck down a spousal-consent provision in the state law and affirmed the essence of Roe. Stability in the law and respect for the Court as an institution, the majority argued, required such a decision. Four conservatives vigorously disagreed.40

In other areas, conservatives triumphed. As an associate justice, Rehnquist had emphasized the need to return to a traditional understanding of federalism, and as chief he succeeded in this regard. In United States v. Lopez (1995), the majority struck down the Gun Free School Zones Act of 1990 as a violation of the Tenth Amendment, which reserved to the states those powers not delegated to the national government. Rehnquist’s majority opinion emphasized “first principles” under the Constitution, rather than nearly sixty years of precedent that had allowed Congress a free hand on such matters so long as it could justify a connection to interstate commerce. In United States v. Morrison (2000), the Court struck down the civil-remedy provision of the Violence Against Women Act on similar grounds, despite extensive congressional hearings that demonstrated the national impact of the problem and the states’ ineffectiveness in dealing with it.41

Another Rehnquist Court landmark seemed more a matter of politics than principle. In the midst of a disputed presidential election between Democratic vice president Al Gore and Republican governor George W. Bush of Texas, the Supreme Court agreed to take a case involving the recount of votes in Florida. With the White House at stake, in Bush v. Gore (2000) the Court held that the state’s attempt to conduct hand recounts of ballots in four counties—because no uniform standard could be applied to determine voter intent—violated the Equal Protection Clause of the Fourteenth Amendment. The 5-4 decision generated fierce disagreement among the justices, exemplified by dissenter Justice John Paul Stevens’s bold assertion that the real loser was “the Nation’s confidence in the judge as an impartial guardian of the rule of law.”42 Although Gore’s subsequent concession attested to the finality of the decision, a Court supposedly respectful of federalism intervening to halt a state election recount struck some as more than a bit ironic. It did not help that the majority declared that its opinion was “limited to the present circumstances,” meaning that it had no value as legal precedent.43 Conservatives too, it seemed, could be judicial activists.

After Rehnquist’s death in 2005, President Bush appointed John Roberts to the chief justiceship. At age fifty, the youngest chief justice since Marshall, Roberts was not Rehnquist. An institutionalist with a deep appreciation for unanimity among the justices, Roberts appeared less ideological than his predecessor, and he generally sought to steer the Court toward narrower decisions in which the justices could achieve more common ground. Weighty matters required the Court to decide hard cases, though, and the justices remained fiercely divided on a number of the issues.

The most significant Roberts Court rulings have all been decided by 5-4 votes. In District of Columbia v. Heller (2008), a conservative majority for the first time held that the Second Amendment protected an individual’s right to bear arms, a decision that led to the incorporation of that right through the Due Process Clause of the Fourteenth Amendment, thus striking a severe blow to gun-control legislation at both the state and municipal levels. In Citizens United v. Federal Election Commission (2010), the same majority built on a Burger-era precedent in holding that corporate donations to independent political broadcasts were free speech protected by the First Amendment, thus opening the door for more money to flow into the nation’s political system. And in Shelby County v. Holder (2013), the five conservatives significantly narrowed the reach of the Voting Rights Act of 1965, by holding that states with a history of racial discrimination no longer needed to seek Justice Department approval for changes in state voting procedures.44 The decision paved the way for a series of state voter-identification measures, ostensibly designed to prevent fraud, which had the effect of disfranchising large numbers of minority voters. Roberts remained at heart a conservative, and in each of these 5-4 decisions the chief was part of the majority.

Still, the most important justice in all of these decisions was moderate Anthony Kennedy, a Reagan appointee who, like Powell and O’Connor, often cast the deciding vote. Although Kennedy voted with Roberts in all of the above-mentioned cases, he consistently sided with the more liberal justices in a series of decisions dealing with gay rights. Not only did he (along with O’Connor) vote to overturn Bowers in 2003 in Lawrence v. Texas, he also wrote for the five-justice majority in striking down the Defense of Marriage Act in 2013. In Obergefell v. Hodges (2015), the Court’s most recent landmark decision, Kennedy authored the majority opinion holding that the Equal Protection Clause of the Fourteenth Amendment protected the right of same-sex couples to marry.45

If major cases have divided the current justices of the Supreme Court, a common profile unites them. They are more diverse in some ways, to be sure, as the Court currently contains three women, one African American, and one Hispanic (Sonia Sotomayor, appointed by President Barack Obama in 2009). But in contrast to many of their predecessors, they are exceptionally well educated and geographically homogenous, and they possess little experience outside of the federal bench or academia. All graduated from elite law schools—Harvard or Yale, with one justice from Columbia. With the exception of the newest justice, Neil Gorsuch, a native of Colorado, all come from coastal states. All justices, with one exception, arrived on the Supreme Court directly from the federal circuit court of appeals. None possesses state judicial experience, and none has extensive experience in the legislative branch at either the federal or state level. Five are Roman Catholic, three are Jewish, and one—Gorsuch—is Protestant.46 The outstanding legal education of recent justices has made for a high level of debate during oral arguments, as well as more intellectually substantive and skillfully written opinions than at any time in the history of the Court.47 But the Court’s elite culture—in sharp contrast to the founders’ belief that circuit riding would keep the justices close to the people—confirms its status as the least accessible branch.

Today the Supreme Court remains more important than ever. Despite a history of attempts to reign in the justices’ influence, neither liberals nor conservatives seem as critical of judicial overreach as in the past. Today’s partisans appear more intent on capturing the Court than curbing it. The reaction to the February 2016 death of conservative icon Justice Scalia, the leading advocate of a jurisprudence of original intent, was a case in point. So much seemed at stake with the open seat that, when President Barack Obama nominated Merrick Garland, a moderate federal judge with impeccable credentials, Senate Republican leaders defied the tradition of acting on judicial nominations during election years and refused to even meet with the nominee, much less hold hearings or a vote.48 They effectively held the Supreme Court seat hostage, arguing that the winner of the fall 2016 presidential election should appoint Scalia’s successor. With the White House held by one party and the Senate by the other, the Garland episode was a dramatic illustration of a nation deeply divided by party and ideology. Still, the incident demonstrates one of the ironies of Supreme Court history: the American public often acknowledges the Court as a political actor at the same time that it expects the highest court in the land to serve as an independent judicial body. This balancing act—of being in the world of politics but not of it—is a tall order for any institution, even one that inhabits a Marble Palace.

Discussion of the Literature

The historical literature on the Supreme Court is vast. Law professors, political scientists, historians, and journalists have all contributed, and they examine the history of the Court in different ways and for different reasons. In general, law professors approach the subject as present-minded advocates who seek historical support for a specific side in a current public-policy debate or to find the historical origins of a particular doctrine in order to understand current law. Political scientists usually focus on the historical relationship among governmental institutions, as well as on the historical development of processes, policies, or doctrines. For political scientists, history serves as a methodological tool used to understand a particular theory of politics, constitutionalism, or institutional development.49 Historians, because of their emphasis on studying change over time, pay stricter attention to the chronology of events than lawyers and political scientists. Moreover, as they are situated in departments of history that usually pay a great deal of attention to social and cultural forces, historians tend to exhibit a greater sensitivity to extra-legal factors in the shaping of justices’ opinions. Journalists, finally, are most interested in offering an insider’s view of the workings of the Court, particularly the personal character of the justices as well as their relationships to one another.50

The history of the Supreme Court’s major decisions has generated the most interest and debate, which means that only a thin line separates Supreme Court history from U.S. constitutional history. Although in general the early history of the Court has drawn less attention than more recent periods, the origins and exercise of judicial review have long been favorite subjects of scholars. While some have claimed that Marshall’s opinion in Marbury marked a significant departure from earlier practice, some recent scholarship has downplayed the contemporary significance of the opinion.51 Most interesting has been the debate over whether Marshall’s opinions as a whole demonstrated his belief in judicial supremacy or whether his jurisprudence simply represented an attempt to establish the Court as a co-equal branch. Wary of the exercise of judicial power by a conservative Court during the 1990s, some liberal legal scholars began attempting to delegitimize the idea of all-powerful judiciary by arguing that the departmental theory of government was much more prevalent during the 19th century than notions of judicial supremacy. Popular constitutionalism—the idea that the people themselves are the ultimate arbiters of constitutional questions—has also been an important subject of historical investigation, again, often as a means of challenging judicial supremacy.52 Scholars have also jousted over the extent to which the ratification of the Reconstruction Amendments represented a constitutional revolution. Historians have seemed more willing to recognize the complexity and diversity of Republicans’ opinions on the question of whether, for example, the framers of the Fourteenth Amendment intended to incorporate all of the guarantees of the Bill of Rights to apply against the states, while some legal scholars have pressed a more robust conception of the Fourteenth Amendment, based on their research into its origins.53 Reconstruction thus has been a fertile field for constitutional studies. A number of scholars have insisted that the Court’s interpretation of the Reconstruction Amendments, beginning with the Slaughterhouse Cases, amounted to a narrowing of the Amendment’s intent and thus a betrayal of African Americans, while others have argued that not until the 1890s did the Court begin to narrow the rights of blacks.54

Debates over the constitutional history of the 20th century have been even more intense. In particular, the role of the Court in the progressive era and the New Deal has generated considerable controversy. Lochner stands at the center. Recently, some scholars have lauded the opinion as exemplifying a longstanding concern with preventing “class legislation,” laws that favored one group over another, as well as protecting the deeply held American tradition of property rights. The conventional reading of the decision—that it reflected a Court beholden to big business—has its defenders as well.55 In a related vein, conservatives have vilified the New Deal Court’s turn away from the protection of the vested rights of property and its turn toward the regulatory state and the protection of civil liberties. Part of this debate has been over the extent to which the New Deal–era marked a “revolution” in constitutional development, with some defending the revolutionary nature of this shift, others opposing it, and others arguing for the essential continuity of the New Deal era with the 1920s.56 All of these debates, of course, overlap and intersect with the intense arguments among scholars over the Warren Court and its legacy—in particular, over the appropriate judicial methods of constitutional interpretation. Arguably, the debate between those who adhere to Brennan’s “living Constitution” theory and those who advocate a jurisprudence of “original intent” is mostly a debate about Roe v. Wade and the expansion of rights beyond those specifically enumerated in the Bill of Rights. Nearly four and a half decades after it was announced, in other words, the decision in Roe still casts a long shadow over the Court and its history.

Other than the history of constitutional interpretation, judicial biography remains a vibrant and popular genre of scholarship. Of course, the greatest and most influential justices—and the ones about whom the most source material exists—have drawn the most attention. These have included Marshall, Holmes, Hughes, Black, and Warren. Justices Brandeis, Taft, Benjamin Cardozo, and Felix Frankfurter, moreover, have also been the subject of extensive biographical treatment, in part because they played important roles in shaping the Constitution both on and off the Court. Biographers usually attempt to make a connection between the subject’s life experiences and his/her judicial record, while at the same time assessing the significance of the justice’s contributions. A perennial question is the matter of leadership or greatness on the bench, elusive qualities that continually bedevil those who assume the challenge of writing about judicial subjects. At least one judicial biographer has dismissed this intellectual enterprise altogether, noting that any definition of greatness speaks only to the current moment and is thus itself “a historical artifact.”57 Still, biographers continue to investigate the lives of the justices—with journalists focusing on the most recent or current members of the Court—thus satisfying the insatiable thirst for information about some of the most powerful individuals in the nation.58

Primary Sources

Primary-source material relating to the history of the U.S. Supreme Court is extensive. The starting point is the official published body of opinions written by the justices, located in the nearly 600 volumes of the United States Reports. These can be found in any law library, as well as via online subscription databases such as Westlaw and Lexis-Nexis. Other websites, noted below, contain the Court’s most important decisions. The briefs filed in U.S. Supreme Court cases can be found through the Library of Congress, as well as through a handful of specially designated repositories throughout the country. Briefs in landmark cases can be found in print at a number of law libraries, and a wider selection of briefs can be found through Westlaw and Lexis-Nexis, as well as other websites. The websites of the U.S. Supreme Court and the U.S. Department of Justice include briefs for recent cases. Oral arguments, once kept private, have during the past few decades become widely available online. The records of the Supreme Court—including minutes of the Court, as well as the records of the clerks and marshals—can be found at the National Archives. Many of these materials can only be accessed on microfilm. The papers of individual justices, unfortunately, are scattered in manuscript collections and libraries throughout the country. For information about these collections, one should consult the website of the Federal Judicial Center. Finally, for the early history of the Court, the definitive resource is the Documentary History of the Supreme Court, 1789–1800, which contains a number of primary sources compiled from the National Archives and other collections relating to the Court’s first decade.59

Much primary biographical material is in published form. Compilations of letters, memoirs, and other source materials exist for a handful of the most important 19th-century justices. Some of these, including collections of letters by Taney and Justice Benjamin Curtis, for example, were assembled by the justices themselves or their close friends or family members. More comprehensive collections have been brought together by scholars, such as The Papers of John Marshall, completed in 2006.60 Since the mid-20th century, many of the justices have written their own autobiographies or memoirs, all of which offer useful insights into the history of the Court.

(10.)
Scott v. Sandford, 60 U.S. 393, 407 (1857). On this landmark case, see Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978).

(11.)
On the impact of Dred Scott, particularly in terms of African American activism, see Timothy S. Huebner, Liberty and Union: The Civil War Era and American Constitutionalism (Lawrence: University Press of Kansas, 2016), 90–93, and Timothy S. Huebner, “‘The Unjust Judge’: Roger B. Taney, the Slave Power, and the Meaning of Emancipation,” Journal of Supreme Court History 40 (2015): 249–262.

(21.)
On this debate, see David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (Chicago: University of Chicago Press, 2011);Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (Lawrence: University Press of Kansas, 1990);Howard Gillman, The Constitution Besieged: The Rise and Decline of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1992);James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888–1910 (Columbia: University of South Carolina Press, 1995); and William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998).

(22.)
Melvin I. Urofsky, “Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era,” Yearbook of the Supreme Court Historical Society (1983): 53–72; and Julie Novkov, Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years (Ann Arbor: University of Michigan Press, 2001).

(29.)
Black believed in the “total incorporation” of the first eight amendments to the Constitution, but, seeing the danger of Lochner, did not believe that the Court should expand the protection of liberty beyond the Bill of Rights. For Black’s dissent, see 381 U.S. 479, 507–527. In his belief in total incorporation, Black advocated judicial activism, in contrast to Justice Felix Frankfurter, who believed in a much more restrained attitude toward incorporation.

(37.)
On Bork’s positions, see Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1997). Reagan made a record thirty-three public statements on behalf of his nominee. See John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore: Johns Hopkins University Press, 1998), 114.

(38.)
William J. Brennan, “Construing the Constitution,” University of California Davis Law Review 19 (1985): 3–4.

(46.)
Before the 2016 death of Justice Antonin Scalia, there were six Catholics on the Court and no Protestants.

(47.)
As one recent history of the Court noted, “It is almost impossible now to conceive of an appointment to the Court of men with legal educational backgrounds like [Robert] Jackson or [James] Byrnes.” Jackson attended Albany Law School for a year before clerking with a lawyer in Jamestown, New York. Brynes was self-taught. While working as a court reporter and stenographer in South Carolina, he read about the law in his spare time. Franklin Roosevelt appointed both men to the Supreme Court in June 1941. Hoffer, Hull Hoffer, and Hull, Supreme Court, 415.

(48.)
Timothy S. Huebner, “In Court Fight, History Backs Obama,” New York Times, February 16, 2016. Much will undoubtedly be written about the Garland episode, as it may have set a new precedent for how such situations are handled in the future.

(49.)
See, for example, the studies of the Supreme Court nomination process: Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush, II, 5th ed. (Lanham, MD: Rowman and Littlefield, 2007); and Maltese, Selling of Supreme Court Nominees.

(50.)
The journalistic approach is best exemplified by Jeffrey Toobin’s two recent books, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007) and The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012). Anthony Lewis’s Gideon’s Trumpet (New York: Random House, 1964) represents an older tradition of journalistic writing about the Court.

(51.)
Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, CT: Yale University Press, 1990); and Clinton, Marbury v. Madison.

(52.)
On popular constitutionalism, see Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).

(53.)
For an example of one law professor who argues vigorously that the framers of the Fourteenth Amendment intended to incorporate the Bill of Rights, see Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998).

(54.)
Decades ago, Michael Les Benedict argued that the Court under Chief Justice Morrison Waite adhered to a state-centered nationalism that allowed for some judicial protection of blacks’ rights. More recently, Pamela Brandwein builds on Benedict’s insights. In contrast to those who posit a simple declension narrative—that the Court abandoned African Americans—Brandwein shows that the Court’s record during the late 19th century was far more nuanced and accommodating of black rights, particularly political and civil rights. See Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (1978): 39–79;Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2014). For an example of the conventional declension narrative, see Frank J. Scaturro, The Supreme Court’s Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence (Westport, CT: Greenwood Press, 2000).

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